Construction Law/Measurement-Payment


Dear Peter,

Thanking you in advance, I wish to put forward my question as follows:

Discrepancies have been noted among the Tender drawings, contract agreement [the Specifications] and the Approved drawings in relation to the construction of Engineer’s accommodations.  
As per Tender Drawing:  The number of rooms shown was 10, with each room area 36.888 Sq. m.  

As per the Contract Agreement [the Specifications]: The number of rooms shown was 14, with each room area 16 Sq. m.  

As per the Approved drawing by the Engineer: Working Drawing was prepared based on the Tender drawing, But the number of rooms considered was as per the Contract agreement i.e.; 14 rooms, genuinely failing to notice the area mentioned in Contract agreement 16 Sq. m for each room.

The area for each room as per approved drawing was matching with the area in tender drawing.

Though, the rooms have been increased to 14 from 10, the area  for each room has not been restricted to 16 Sq. m as per the contract agreement , thus followed the tender drawing area.
Now, the difference in area executed by contractor as compared to the contract [Specification] was 291.16 Sq. M [14x36.888 less 14x16], which is being claimed by the contractor.

Although there was a difference in the area from the Contract [Specifications], the work was actually executed based on the drawings the Engineer approved.

Can the Contractor claim for the difference [that is payment to be made based on the approved drawings as constructed]?
As usual, I am request for your directions in this regard.

Best regards,


Dear Alemu,

You do not mention the form of contract, the applicable law, nor if the contract is remeasurable or lump sum so my comments will be pragmatic rather than contractual.  

All participants have made mistakes here.  Nobody checked the documents for consistency until it was too late, but the Contractor is the one that is suffering, so something must be done to ease his pain.  The Engineer should have stated that the drawings were compliant with the Contract and were acceptable subject to no time or cost effect.  Generally the Engineer's 'approval' has no value until the final certificate.  In this situation, there is no right or wrong or easy solution.  If I was the Engineer, I would try to find a middle ground, where both sides accept a compromise.  The cost of this mistake, relative to the total value of the Contract, is likely to be relatively minor.  I would ask the Contractor to accept that both sides have made mistakes; that he should drop his claim for the extra area and that in return the Engineer will ensure that future legitimate claims are dealt with sympathetically.  It is all a matter of building trust between the parties and ensuring that there is a team working together on the contract rather than opposing factions at war.  If the Contractor trusts the Engineer, the problem will be solved.  If not, the situation will deteriorate and the paper war will start.

I regret that I cannot give you as more definitive answer, but this problem of inconsistent documents occurs all the time in construction.  

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Peter M. Elliott


First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol before submitting a question.


Value . . .
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